“Everyone has the right to a nationality”

Who are you? - Fraud, impersonation and loss of nationality without procedural protection

25 June 2014 | Adrian Berry, Barrister, Garden Court Chambers, London

The UK divides persons who acquire British citizenship by fraud into two classes when seeking to secure their loss of such citizenship. Where the fraud concerns impersonation there is no right of appeal and the acquisition is treated as a ‘nullity’ (as never having occurred). Where the fraud concerns some other matter there is a right of appeal to a tribunal.   What reason can there be for segregating one class of fraud in this way and depriving its practitioners of some minimal procedural protection? Is it accident or design that the law has grown up in this way? Is there a reason in the result, even if were accidental in the occurrence? Is the doctrine of nullity compatible with the standards of procedural protection to be expected? 

Procedural protection against loss of nationality forms a critical safeguard in the avoidance of statelessness. For a person who loses his or her nationality of origin on the acquisition of another nationality, where the latter is acquired by fraud, any subsequent deprivation of the latter nationality on grounds of fraud may lead to statelessness.

The situation is not hard to envisage, a person who holds the nationality of State A (that is intolerant of its nationals holding multiple nationalities) fraudulently acquires the nationality of State B. Under the operation of the law of State A the person loses the nationality of State A on acquisition of the nationality of State B. Later State B learns that fraud was employed to acquire its nationality and takes steps to deprive the person of its nationality. If it succeeds the person will be left stateless.

Such was the position of Mr Rottmann in Rottmann v Freistaat Bayern C-135/08 CJEU 2 March 2010, who employed deception to acquire German nationality. Procedural protection is critical if statelessness is to be avoided. The 1961 Convention on the Reduction of Statelessness, article 8(2), allows deprivation of nationality obtained by misrepresentation or fraud even where the person would be left stateless. A measure of procedural protection is provided by article 8(4) but it does not prevent statelessness in the result. The 1997 European Convention on Nationality, article 7, allows for loss of nationality acquired by means of fraudulent conduct, false information, or concealment of any relevant fact attributable to the applicant even where the person would thereby become stateless.  A measure of procedural protection is provided by article 12 but it does not prevent statelessness in the result.

Famously, Mr Rottmann sought to engage EU law in order to challenge the loss of German nationality acquired by fraud. He was at risk of statelessness having lost his Austrian nationality on acquisition of German nationality. The Court of Justice sought to have the act of deprivation of German nationality assessed by reference to the principle of proportionality so far as concerned the consequences for him in the light of the concomitant loss of EU citizenship and in addition, where appropriate, by reference to the proportionality of the decision in the light of national law.

Mr Rottmann was lucky to have secured the protection that he did under EU law. However judicial review of the loss of nationality may take many forms. There may be a right of appeal on facts and law (including the exercise of discretion) where evidence is adduced before the court and there is an originating jurisdiction to assess the merits of deprivation, there may be a review of whether the decision to deprive a person of nationality was made in accordance with the applicable law, or there may be an assessment of whether the decision to deprive was arbitrary, etc. Practice varies according to the provision in the domestic legal order of each state.

In the UK, by order, a person may be deprived of British citizenship acquired by grant on application, where the Secretary of State is satisfied that citizenship was obtained by fraud, false representation or concealment of a material fact. This may be done even where the person would be made stateless. Before making the order, the Secretary of State must give the person written notice specifying that a decision has been made to make an order, giving reasons for making the order, and the right of appeal to a tribunal. A person given such notice may appeal to a tribunal against the decision to make an order. However that does not prevent the order for deprivation of citizenship being made in the meantime. So the appeal is non-suspensive. If the appeal is allowed then the order for deprivation of citizenship may be treated as having had no effect, see sections 40 and 40A of the British Nationality Act 1981.

The procedural protection in ordinary fraud cases is not perfect. The absence of a suspensive right of appeal and of the need for judicial confirmation of the decision before loss of nationality takes effect creates a moment in which statelessness may arise. True there is a right of appeal where a tribunal may examine both the law (including the exercise of discretion) and the facts behind the decision to deprive a person of nationality, allowing the tribunal to reach its own conclusion as to whether or not loss of nationality is warranted. However, that does not compensate or off-set the loss of procedural protection where there is want of suspensive effect in a right of appeal and where deprivation of nationality may take place by administrative act without the need for judicial confirmation of the decision.

That said, persons benefitting from procedural protection in ordinary fraud cases are lucky compared to their peers accused of fraud by way of impersonation when securing a grant of nationality. In such circumstances, where impersonation is alleged there is no need for a decision to deprive that person of nationality, the decision is merely treated as never having occurred. Further, as there is no decision as such, there is no right of appeal to a tribunal.

‘Impersonation’ relates to a person making false representations about his or her own identity. The key characteristics have been held to be name, date of birth, nationality, or country and place of birth. These are the ingredients for a check on the identity of someone who seeks naturalisation as a British citizen, see Kaziu and others v Secretary of State [2014] EWHC 832 (Admin). A person who is held to have acquired British citizenship through impersonation may find that the Secretary of State treats his or her acquisition as a nullity, as never having had occurred. The person may still hold a certificate stating that he or she has been granted British citizenship. However that certificate is treated as worthless.

As already noted, the treatment of a grant of nationality as a nullity is a serious turn of events that lacks any procedural protection under the British Nationality Act 1981. There is no statutory requirement to make a decision, to give reasons or to have a right of appeal. However, there is some very minimal procedural protection provided. The fundamental right of access to a court in respect of executive decisions is maintained through the availability of judicial review of the decision in the High Court. Such a judicial review is not an appeal on facts and law but a review to see whether the decision was flawed by illegality, unreasonableness or unfairness.  Judicial review in the High Court is a non-suspensive procedure. Further, innocent errors in the details of date of birth, names, the innocent use of pseudonyms, and misunderstandings as to nationality, or country and place of birth do not make a nullity of the grant of British citizenship. The fraud must also have been material to the grant. Finally, the High Court may treat the question of whether the grant of citizenship is a nullity as a question of precedent fact requiring the Secretary of State to prove them where those facts are contested, and does not merely consider whether the decision was reasonably open to the Secretary of State.

Despite the minimal procedural protection afforded in cases where a grant of citizenship is held to be a nullity, there are still many weaknesses in the protection afforded. In addition to the ones already noted (lack of non-suspensive appeal, absence of requirement for judicial confirmation of decision), the Secretary of State may notify a person who has acquired British citizenship by fraud that deprivation of nationality is unlikely but then years later, at any time, hold that the grant of citizenship is a nullity. The person so affected then has to bring a claim for judicial review in the High Court.

The requirement for there to be a decision to deprive a person of citizenship, together with a right of appeal to a tribunal would provide better procedural protection. It would enable judicial consideration of the facts and law behind the decision to deprive the person of British citizenship on grounds of fraud. It would enable fresh evidence to be filed down to the date of the hearing. Further, the impact of the decision to deprive the person of citizenship on third parties, such as family members could be considered. Such an appeal would also be more apt to capture any human rights issues arising than a judicial review in the High Court.

There is no reason in principle for segregating one class of fraud in this way by treating them as a nullity and depriving its practitioners of minimal procedural protection by way of a right of appeal. The application of the doctrine of nullity in British citizenship cases does not derive from statute law but from judicial decisions over the years to treat the grant of citizenship to a particular person as never having occurred to that person, where he or she assumed the identity of person who is dead, the identity of another living person or the identity of a fictitious person. It is in this way that the doctrine has grown up. However, while this incremental development of the law may be readily understandable in its historical setting, it has not kept pace evolving standards of procedural protection in regional and international treaties. Nor has it kept pace with developing standards of procedural protection and fairness as general principles of law. Looking back from today, the segregation of one class of fraud depriving its practitioners of some minimal procedural protection cannot be considered to be other than inconsistent with contemporary standards of protection.

Accusing a person of fraud by impersonation is a very serious thing to do. Where the consequences are a loss of citizenship and statelessness, the consequence are egregious. Effective procedural protection is essential to minimise the risk of statelessness. The time has come for the United Kingdom to legislate to provide for decisions on loss of citizenship based on all types of fraud (including impersonation) leading to acquisition of British citizenship to be the subject of appeal proceedings. Further, the UK should also legislate for these appeal proceedings to be suspensive and for judicial confirmation of decisions to deprive a person of citizenship to be required before they take effect.

 

Europe must act now to protect an estimated 600,000 stateless people who live in Europe today. Join the cause and sign the petition - http://www.statelessness.eu/act-now-on-statelessness

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